FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEON R. ROUSE, 

Plaintiff-Appellant,

v. No. 06-15967

UNITED STATES DEPARTMENT OF D.C. No.

STATE; JOHN NEGROPONTE; THOMAS  CV-05-00620-SPK

HUBBARD; JOHN CAUFIELD; MARTHA OPINION SARDINAS; PAUL BOYD; JOSEPH

BRACKEN,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Hawaii

Samuel P. King, District Judge, Presiding

Argued and Submitted

September 12, 2008—San Francisco, California

Filed November 24, 2008

Before: Diarmuid F. O’Scannlain, Ronald M. Gould, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge O’Scannlain

15715
COUNSEL

Kari E. Hong, Law Offices of Kari E. Hong, Oakland, California, argued the cause for the plaintiff-appellant and filed

the briefs. 

Derrick K. Watson, Assistant United States Attorney, Honolulu, Hawaii, argued the cause for the defendants-appellees;

Lawrence L. Tong, Assistant United States Attorney, Honolulu, Hawaii, filed the brief; Edward H. Kubo, Jr., United

States Attorney, District of Hawaii; Jeremy M. Weinberg,

Brian J. Egan, and Shawn M. Pompian, United States Department of State, Office of the Legal Adviser, Washington, D.C.,

were on the brief. 

15718 ROUSE v. UNITED STATES DEP’T OF STATE
OPINION

O’SCANNLAIN, Circuit Judge: 

We must decide whether a United States citizen may state

a claim against the U.S. Department of State under the Privacy Act for damages arising from his imprisonment in a foreign country.

I

A

1

Leon Rouse is a citizen of the United States. On October

4, 1995, he was arrested in the Philippines when police

entered his hotel room and found him and another individual,

Godfrey Domingo, undressed. Domingo signed an affidavit

stating he was a minor and that he and Rouse had engaged in

sexual relations. Though Domingo later disavowed the affidavit, Rouse was charged under Philippine law with violating

the “Special Protection of Children Against Child Abuse,

Exploitation and Discrimination Act.” The trial court ignored

Domingo’s repudiation and convicted Rouse, relying on the

original affidavit, testimony indicating Rouse had engaged in

consensual sex with a twenty-year-old male who “look[ed]

like a minor,” and the fact that Domingo and Rouse were

found undressed together. Rouse continued to challenge his

conviction in Philippine courts, but was sentenced to over ten

years imprisonment on January 12, 1998. After eight years, he

was released for medical reasons and deported to the United

States. 

2

On January 30, 1996, during Rouse’s trial, consular officials from the United States Embassy in Manila (the “EmbasROUSE v. UNITED STATES DEP’T OF STATE 15719
sy”) filed letters with the trial court, expressing concerns with

evidentiary issues. The letters were accompanied by a warning that failure to respond would result in referral to the Philippine Ministry of Justice. The record does not appear to

contain evidence of either a response from the judge or a

referral by the Embassy. 

Embassy officials raised Rouse’s case with local officials,

and the Ambassador himself broached the subject with a Philippine legislator. The Ambassador, however, did not think the

matter merited the attention of the Philippine president. Consular officers also visited Rouse at least nineteen times during

his confinement, communicated with him by telephone, and

assisted in providing him with access to medical care.

3

Over the course of his confinement, Rouse executed

numerous Privacy Act waivers permitting the Department of

State (the “Department”) to disclose information about his

case to third parties. On several occasions, the Department

responded to inquiries from private organizations and members of Congress without mentioning its doubts as to the propriety of Rouse’s arrest and incarceration or its efforts to

obtain his release. The Department also initially refused to

release information to certain individuals or groups. Rouse

asserts that he had signed Privacy Act waivers covering these

parties and that the failure to disclose the records constituted

willful and intentional misrepresentations on the part of the

Department. The Government maintains that at worst it was

“confused about the status of Mr. Rouse’s waivers.” 

4

In “late 1999,” Rouse asked the Department for a copy of

any files which had been kept on him. While it appears the

Department did not immediately provide a copy, it complied

with this request by September 2000. Documents Rouse

15720 ROUSE v. UNITED STATES DEP’T OF STATE
alleged to be missing from his file were later made available

to him via a Freedom of Information Act (“FOIA”) request.

5

Rouse filed a petition with the United Nations Human

Rights Committee (“UNHRC”) on June 10, 2002, under the

Optional Protocol to the International Covenant on Civil and

Political Rights. On July 25, 2005, the UNHRC issued its

views that Rouse had been improperly imprisoned on a number of evidentiary and procedural grounds. 

B

Just short of two years following his return to the United

States, Rouse filed a pro se complaint in the United States

District Court for the District of Hawaii, seeking over nine

million dollars in damages. See 5 U.S.C. § 552a(g)(5) (allowing a Privacy Act action to be filed “in the district in which

the complainant resides”).1 He alleged that the Department

violated the Privacy Act, 5 U.S.C. § 552a, by willfully and

intentionally failing to maintain and to disseminate records

regarding his case with the appropriate level of accuracy, relevance, timeliness, and completeness. As Rouse maintained

that his arrest, indictment, and trial were fraught with procedural and evidentiary defects, he asserted that the Department’s actions deprived him of the benefits of diplomatic and

third-party efforts to secure his freedom.2

1Rouse’s only claims are under the Privacy Act. He “specifically disclaim[ed] any attempt to assert a claim under the Federal Tort Claims

Act.” 

2Specifically, Rouse alleged that the Department deliberately maintained, used, and disseminated inaccurate records which in turn denied

him: 1) “a fair determination to his entitlement to [the Department’s]

exhaustive protective services”; 2) “a fair determination to his right to

have and control the release of information about his case/situation” via

Privacy Act waivers; 3) “ready access to his embassy records”; 4) “a fair

determination to his entitlement to receive regularly scheduled [consular]

visits”; and 5) “his right to U.S. Embassy assistance in knowing what

rights [he] had a just claim to as well as what assistance and aid the U.S.

Embassy should provide him.” 

ROUSE v. UNITED STATES DEP’T OF STATE 15721
The district court granted the Department’s motion to dismiss, determining that Rouse’s claims “would fail on the merits because of a lack of causation,” the Privacy Act did not

afford Rouse a remedy, and Rouse’s complaint was “probably” barred by the applicable statute of limitations.3

 This

timely appeal followed. 

II

[1] The Privacy Act was designed to “protect the privacy

of individuals” through regulation of the “collection, maintenance, use, and dissemination of information” by federal

agencies. 5 U.S.C. § 552a note. It provides agencies with “detailed instructions for managing their records and provides for

various sorts of civil relief to individuals aggrieved by failures

on the Government’s part to comply with the requirements”

of the Act. Doe v. Chao, 540 U.S. 614, 618 (2004). 

Broadly speaking, there are two types of Privacy Act

claims: “accuracy” claims and “access” claims. Accuracy

claims arise under two different provisions of the Act. The

first requires an agency to “maintain all records which are

used by the agency in making any determination about any

individual with such accuracy, relevance, timeliness, and

completeness as is reasonably necessary to assure fairness to

the individual in the determination.” See 5 U.S.C.

§ 552a(e)(5). The second mandates that “prior to disseminating any record about an individual to any person other than

an agency . . . [it must] make reasonable efforts to assure that

such records are accurate, complete, timely, and relevant for

agency purposes.” Id. § 552a(e)(6). Congress has provided for

3Rouse initially named the Embassy and various individuals as defendants. Because the Privacy Act only permits suits against an “agency,” see

5 U.S.C. § 552a(g)(1), and does not apply to individual defendants, see

Schowengerdt v. Gen. Dynamics Corp., 823 F.2d 1328, 1340 (9th Cir.

1987), the district court dismissed the claims against the individual defendants and substituted the Department of State for the Embassy. 

15722 ROUSE v. UNITED STATES DEP’T OF STATE
civil remedies for violation of these provisions. See id.

§ 552a(g)(1)(C) (creating a cause of action when an agency

“fails to maintain any record concerning any individual with

such accuracy, relevance, timeliness, and completeness as is

necessary to assure fairness in any determination relating to

the qualifications, character, rights, or opportunities of, or

benefits to the individual that may be made on the basis of

such record, and consequently a determination is made which

is adverse to the individual”); id. § 552a(g)(1)(D) (creating a

cause of action where an agency “fails to comply with any

other provision of this section . . . in such a way as to have

an adverse effect on an individual”). If a court determines that

an agency has violated these provisions in a manner that was

“intentional or willful, the United States shall be liable to the

individual in an amount equal to the sum of actual damages

sustained by the individual.” Id. § 552a(g)(4). 

Access claims, on the other hand, arise under a different

provision, id. § 552a(d)(1) (requiring that agencies provide an

individual “access to his record” “upon request”), and can

likewise be enforced via civil action, id. § 552a(g)(1)(B) (creating a cause of action when an agency “refuses to comply

with an individual request under subsection (d)(1)”). 

Rouse brings both accuracy and access claims. We review

the district court’s dismissal of these claims de novo, see

Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065 (9th

Cir. 2008), accepting “all material allegations of the complaint” as true and construing “all reasonable inferences” in

favor of the nonmoving party, Navarro v. Block, 250 F.3d

729, 732 (9th Cir. 2001). 

III

[2] We first consider whether Rouse’s complaint was timebarred. The Privacy Act requires plaintiffs to bring suit within

“two years from the date on which the cause of action arises.”

5 U.S.C. § 552a(g)(5). Even if his complaint was filed outside

ROUSE v. UNITED STATES DEP’T OF STATE 15723
the two-year period, Rouse asserts that the statute should be

equitably tolled to account for his imprisonment in a foreign

country. We address each question in turn, reviewing de novo

“the question of when a cause of action accrues [under the

Privacy Act] and whether [such] a claim is barred by the statute of limitations.” See Oja v. U.S. Army Corps of Eng’rs, 440

F.3d 1122, 1127 (9th Cir. 2006).

A

[3] Initially, we must determine whether Rouse’s complaint

was filed within two years of the date his cause of action

allegedly arose. We have held that a cause of action arises

under the Privacy Act when the plaintiff “knows or has reason

to know of the alleged violation.” Rose v. United States, 905

F.2d 1257, 1259 (9th Cir. 1990). 

[4] Rouse “concedes that he was aware of many of the acts

and omissions underlying the violations of the Privacy Act

during the course of his imprisonment.” The record bears this

out. By 1998, Rouse allegedly “began to realize that the

Embassy personnel were deliberately manipulating the existence and content of his [Privacy Act waivers].” At the very

latest, Rouse would have been aware of the basis for his most

recent allegation against the Department when he received his

“complete” file pursuant to a FOIA request in early 2002.

Accordingly, when Rouse’s complaint was filed on September 27, 2005, it was filed more than two years after he knew

or had reason to know of the alleged violations.

B

[5] Before proceeding further, we must decide whether

§ 552a(g)(5) operates as a statute of limitations or as a jurisdictional bar. If it is the former, the traditional defenses of

“waiver, estoppel, and equitable tolling” apply. United States

v. Locke, 471 U.S. 84, 94 n.10 (1985). If it is the latter, such

defenses are inapplicable, and we lack subject matter jurisdic15724 ROUSE v. UNITED STATES DEP’T OF STATE
tion over the case entirely. See Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 393 (1982). 

For many years, it was commonplace for courts to determine that time limits in statutes permitting suits against the

government were jurisdictional in nature. See, e.g., Action on

Smoking & Health v. C.A.B., 724 F.2d 211, 225 (D.C. Cir.

1984). Such statutes were viewed as conditions to waivers of

sovereign immunity and were thus construed narrowly. See

Block v. North Dakota, 461 U.S. 273, 287 (1983). Indeed, at

least one of our sister circuits determined that § 552a(g)(5)

was jurisdictional. See Diliberti v. United States, 817 F.2d

1259, 1262 (7th Cir. 1987). In Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), however, the Supreme Court

announced a “general rule” that “the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United

States.” Id. at 95-96. The Court reasoned that while waivers

of sovereign immunity had to be “unequivocally expressed,”

once Congress made such waiver, applying “the rule of equitable tolling . . . to suits against the Government, in the same

way that it is applicable to private suits, amounts to little, if

any, broadening of the congressional waiver.” Id. at 95. Congress, the Court ruled, is presumed to legislate against the

backdrop of private litigation, a backdrop which includes

equitable tolling. See id.; cf. United States v. Texas, 507 U.S.

529, 534 (1993) (noting a “presumption favoring the retention

of long-established and familiar principles, except when a

statutory purpose to the contrary is evident” (internal quotation marks and citation omitted)).4

4Despite Irwin, Diliberti does not appear to have been directly overruled. We note that at least two other circuits (one in an unpublished disposition) have since ruled that § 552a(g)(5) is jurisdictional. See Harrell

v. Fleming, 285 F.3d 1292, 1293 (10th Cir. 2002); Weber v. Henderson,

33 F. App’x 610, 611 (3d Cir. 2002). Both simply cite Diliberti, and neither appear to have considered the implications of Irwin. 

ROUSE v. UNITED STATES DEP’T OF STATE 15725
The Supreme Court clarified its position in United States v.

Brockamp, 519 U.S. 347 (1997). Before deciding whether

Irwin’s general presumption in favor of equitable tolling had

been rebutted, the Supreme Court assumed, “for argument’s

sake, that a tax refund suit and a private suit for restitution are

sufficiently similar to warrant” application of the presumption.

Id. at 350 (emphasis added). In other words, for Irwin’s presumption to apply, the underlying cause of action must be

“sufficiently similar” to a traditional cause of action between

private parties.

1

[6] The D.C. Circuit applied this methodology in Chung v.

U.S. Department of Justice, 333 F.3d 273 (D.C. Cir. 2003), to

hold that § 552a(g)(5) was not categorically jurisdictional. See

id. at 277 (stating that for Irwin to apply, “the type of litigation at issue must not be so peculiarly governmental that there

is no basis for assuming customary ground rules apply”). To

ensure the presumption the Supreme Court established in

Irwin received its proper weight, however, the court noted

that this inquiry “must be conducted at a fairly high level of

generality.” Id. (“[T]he question we ask, therefore, is not

whether the elements of, and remedies available in, the action

against the Government mimic those of a private claim, but

whether the injury to be redressed is of a type familiar to private litigation.”). 

[7] We agree with the D.C. Circuit’s analysis in Chung.

Here, Rouse claims that he was harmed by the Department’s

allegedly willful failure to disseminate and to maintain accurate records about the status of his case.5

 Taking the allegations in the complaint as true, we must assume that the

Department was willfully misrepresenting information to and

about Rouse. We are satisfied that these claims are suffi5These are listed in Rouse’s complaint as his First, Second, Fourth, and

Fifth Causes of Action. 

15726 ROUSE v. UNITED STATES DEP’T OF STATE
ciently similar to traditional tort actions such as misrepresentation and false light to warrant the application of Irwin’s

rebuttable presumption. Cf. Restatement (Second) of Torts

§ 525 (1977); id. § 532; id. § 652E. Rouse’s claim pertaining

to access to his Department file,6 however, has no analog in

private litigation. Accordingly, the “access” claim must be

dismissed for lack of jurisdiction.7

2

[8] Having decided that the statute of limitations with

respect to Rouse’s “accuracy” claims is not jurisdictional, we

must next ask the question: “Is there good reason to believe

that Congress did not want the equitable tolling doctrine to

apply?” Brockamp, 519 U.S. at 350. In other words, has the

Irwin presumption been rebutted? The government contends

that Congress “has already effectively allowed for equitable

tolling” by including a “built in” exception to the statute of

limitations. United States v. Beggerly, 524 U.S. 38, 48 (1998).

That exception applies to situations 

where an agency has materially and willfully misrepresented any information required under this section

to be disclosed to an individual and the information

so misrepresented is material to establishment of the

liability of the agency to the individual under this

section the action may be brought at any time within

two years after discovery by the individual of the

misrepresentation. 

6This is listed in Rouse’s complaint as his Third Cause of Action. 

7

In any case, Rouse’s access claims are moot, as he concedes he “received a copy of his embassy file.” Other circuits have held that dismissal

for mootness is appropriate in such circumstances, even where the records

were not delivered in a timely fashion, see, e.g., Lovell v. Alderete, 630

F.2d 428, 430-31 (5th Cir. 1980), and we have so held in the analogous

FOIA context, see, e.g., Carter v. Veterans Admin., 780 F.2d 1479,

1480-81 (9th Cir. 1986). 

ROUSE v. UNITED STATES DEP’T OF STATE 15727
5 U.S.C. § 552a(g)(5). While this language does cut against

the presumption, as the D.C. Circuit noted in Chung, it does

not defeat it. See Chung, 333 F.3d at 278-79. The Supreme

Court has only found the Irwin presumption overcome when

dealing with statutes containing “detail[ed], . . . technical language” and “explicit list[s] of exceptions,” Brockamp, 519

U.S. at 352; circumstances where equitable tolling “could

create serious administrative problems,” id.; areas of law

where the running of a defined statute of limitations is of

“special importance,” Beggerly, 524 U.S. at 49; or statutes the

Court previously interpreted as jurisdictional in nature, see

John R. Sand & Gravel Co. v. United States, 128 S. Ct. 750,

755 (2008). 

[9] No such circumstances, nor any others that might militate against tolling, exist in this case. Accordingly, we conclude that the Irwin presumption has not been rebutted. 

C

Is equitable tolling warranted on the facts of this case? In

addition to arguing for tolling, Rouse maintains that the district court’s suggestion that his claims were time-barred was

particularly egregious because “[a] motion to dismiss based

on the running of the statute of limitations period may be

granted only if the assertions of the complaint, read with the

required liberality, would not permit the plaintiff to prove that

the statute was tolled.” Supermail Cargo, Inc. v. United

States, 68 F.3d 1204, 1206 (9th Cir. 1995) (internal quotation

marks and citation omitted). 

[10] Despite Rouse’s assertions, equitable tolling is applied

“only sparingly.” Irwin, 498 U.S. at 96; Scholar v. Pac. Bell,

963 F.2d 264, 268 (9th Cir. 1992). Significantly, “a litigant

seeking equitable tolling bears the burden of establishing two

elements: (1) that he has been pursuing his rights diligently,

and (2) that some extraordinary circumstance stood in his

way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)

15728 ROUSE v. UNITED STATES DEP’T OF STATE
(emphasis added); see also Lawrence v. Florida, 127 S. Ct.

1079, 1085 (2007) (noting that equitable tolling might be

available “in light of the arguably extraordinary circumstances and the prisoner’s diligence” (emphasis added)). 

[11] In his brief, Rouse asserts that his imprisonment was

an “extraordinary circumstance.” However, that is only one

prong of the Pace test; litigants seeking equitable tolling must

also affirmatively demonstrate that they have diligently pursued their rights.8

See Pace, 544 U.S. at 418 (“Even if we

were to accept [that the petitioner satisfied the extraordinary

circumstances test], he would not be entitled to [equitable tolling] because he has not established the requisite diligence.”).

The face of the complaint makes no reference to any attempt

by Rouse to bring his claims in federal court during his imprisonment.9

 Indeed, Rouse makes no mention of the due diligence

requirement, focusing exclusively on extraordinary circumstances. 

[12] Rouse contends, nonetheless, that the availability of

equitable tolling is not “generally amenable to resolution on

a Rule 12(b)(6) motion” because resolution of the matter

“often depends on matters outside the pleadings.” Supermail

Cargo, Inc., 68 F.3d at 1206 (internal quotation marks and

citation omitted); see also Cervantes v. City of San Diego, 5

F.3d 1273, 1276 (9th Cir. 1993) (noting dismissal on the

pleadings in a “handful” of “unusual cases”). However, we

have dismissed claims on statute of limitations grounds when

8Examples of diligent pursuit include situations where defective complaints have been filed during the statutory period, see, e.g., Burnett v.

N.Y. Cent. R.R. Co., 380 U.S. 424, 430 (1965); Corjasso v. Ayers, 278

F.3d 874, 878 (9th Cir. 2002); or where the complainant has been “induced or tricked by his adversary’s misconduct into allowing the filing

deadline to pass,” see, e.g., Irwin, 498 U.S. at 96. 

9

If Rouse had filed his complaint during his imprisonment, his case

could have been stayed until his release. See Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 817 (9th Cir. 2003). Contrary to his assertions, Rouse

would not have been required to “fully pursue a civil action” from prison.

ROUSE v. UNITED STATES DEP’T OF STATE 15729
“some fact, evident from the face of the complaint, supported

the conclusion that the plaintiff could not prevail, as a matter

of law, on the equitable tolling issue.” Cervantes, 5 F.3d at

1276. Here, such conclusion is amply supported by several

undisputed facts evident on the face of the complaint.10 For

example, Rouse’s incarceration did not preclude him from

transmitting a FOIA request to the Department of State in

Washington, D.C., on August 3, 2000. During his confinement, he had two lawyers, requested and received legal materials from Department officials, had some level of access to

a telephone and fax machine, and wrote numerous letters.

Such facts, evident on the face of the complaint, lead us to

conclude that as a matter of law, Rouse cannot establish that

he is entitled to equitable tolling. 

Moreover, Rouse’s imprisonment did not prevent him from

filing a complaint with the UNHRC in Geneva, Switzerland

on June 10, 2002. If Rouse could lodge a complaint with that

body, there is no reason he could not similarly file in federal

court. Cf. Washington v. Garrett, 10 F.3d 1421, 1437 (9th Cir.

1993) (affirming the dismissal of an untimely filed discrimination suit when plaintiff had “proceeded correctly” in two

related actions). 

[13] While the district court did not squarely hold that

Rouse’s claims violated the statute of limitations, we may

affirm the lower court’s dismissal on any ground apparent

from the record. See Papa v. United States, 281 F.3d 1004,

1009 (9th Cir. 2002). Because his complaint was filed outside

the two year statute of limitations, and because he cannot

demonstrate the diligence necessary to trigger equitable tolling, Rouse’s claims are properly dismissed as time-barred.11

10The complaint includes all exhibits attached thereto. See Fed. R. Civ.

P. 10(c); Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.

1987). 

11Rouse alleges that he should be allowed to take advantage of

§ 552a(g)(5)’s “built-in” tolling provision, discussed supra Part III.A.2,

15730 ROUSE v. UNITED STATES DEP’T OF STATE
IV

[14] Even if the complaint were not time barred, Rouse’s

claims would fail on the merits. As we lack jurisdiction over

his access claim, we consider only Rouse’s accuracy claims.12

In order to state a claim under the accuracy provisions of the

Privacy Act, an individual must show “1) that the government

failed to fulfill its record keeping obligation, 2) which failure

proximately caused the adverse determination, 3) that the

agency failed intentionally or willfully to maintain the

records, and 4) that the plaintiff suffered actual damages.”

Rose, 905 F.2d at 1259; Hewitt v. Grabicki, 794 F.2d 1373,

1379 (9th Cir. 1986) (noting that § 552a(g)(1)(C) “requires a

causal connection between the allegedly erroneous agency

record and an adverse determination made against the individual.”);13 see also 5 U.S.C. § 552a(g)(4) (noting that in actions

under § 552a(g)(1)(C) or (D), damages are only available for

injuries incurred “as a result of” alleged violations).

because he alleges material and willful misrepresentation. However,

Rouse never raised this exception in his opening brief: indeed, he did not

even quote the relevant part of the statute. Accordingly, he waived any

potential benefit the exception might provide. See Paladin Assocs., Inc. v.

Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003) (explaining that we

“ordinarily will not consider matters on appeal that are not specifically and

distinctly argued in an appellant’s opening brief”). 

In any case, the exception would be irrelevant. Instead of the clock

beginning to run from the time Rouse “knew or should have known,” of

the violation, the clock would start with his actual discovery of the violation. In this case, those points are one and the same. Whether the clock

started when Rouse knew of the alleged violation or when he “discover-

[ed]” the misrepresentation, it expired prior to the time Rouse filed his

complaint. 

12These are listed in Rouse’s complaint as his First, Second, Fourth, and

Fifth Causes of Action. 

13Rose and Hewitt explicitly referenced § 552a(g)(1)(C). However, there

is no reason § 552a(g)(1)(D) would require any less of a causal connection. 

ROUSE v. UNITED STATES DEP’T OF STATE 15731
A

Because the district court relied on a causation analysis to

dismiss Rouse’s claims on the merits, we move first to the

second Rose prong. The gravamen of Rouse’s theory of causation is that the Department willfully and intentionally failed

to keep, to maintain, and to disseminate accurate records

about his case. He contends that if the Department had kept,

maintained, and disseminated accurate records about his case,

the Department (or a third party) would have been able to file

diplomatic or other protests with the Philippine government.

If these protests had been filed, Rouse would have been

released from prison. The resulting prolonged imprisonment

caused Rouse extreme emotional distress and other nonpecuniary harms. 

[15] We agree with the Department’s counsel that Rouse’s

chain of inferences “stretches any notion of proximate cause

beyond the breaking point.” Regardless of whether or not the

records were accurately maintained and disseminated, it is

pure speculation that the Department would review them and

decide to pursue additional diplomatic protests. It is speculation upon speculation then to assume that if the Department

or third parties decided to protest further, such protest would

have ensured Rouse’s early release. Indeed, such claims are

belied by the record itself, which demonstrates that official

Embassy protests in Rouse’s case were unavailing. Thus, the

district court did not err when it dismissed the case for “lack

of causation.”

14

14Because we are satisfied that Rouse is unable to demonstrate the requisite causal link between the asserted violation and his alleged injuries,

we need not decide whether the nonpecuniary emotional harms he alleges

constitute “actual damages” under the Privacy Act. See 5 U.S.C.

§ 552a(g)(4)(A). 

15732 ROUSE v. UNITED STATES DEP’T OF STATE
B

Rouse’s error is compounded by his belief he was entitled

to further diplomatic efforts. Such claims are wholly outside

the scope of the Privacy Act. Rouse bases this assumption on

Department regulations and the Foreign Affairs Manual. See,

e.g., 22 C.F.R. § 71.6 (requiring Department officials to “extend every possible aid and assistance within their power to

distressed American citizens”); 7 Foreign Aff. Manual

§ 426.1(b) (“If the legal and human rights of U.S. citizens and

nationals arrested abroad are to be adequately protected, [the

Department] must be prepared to protest substantiated violations of those rights [including] impressing on the host government that the U.S. Government . . . will not tolerate a

violation of [its citizens] rights.”). 

In the first place, many of Rouse’s claims of misrepresentation are based on records that include opinions and judgments

as to the status of his case. Such records are not actionable

under the Privacy Act. See Hewitt, 794 F.2d at 1379 (determining that characterizations of an employee’s performance

on a proficiency report were not appropriate grounds for a Privacy Act claim because “interpretation of facts is properly

consigned to the professional judgment of the agency official”). 

[16] More significantly, we have found nothing in these

regulations which indicates that they create a private right of

action, much less one enforceable in court through the Privacy

Act. Rouse must demonstrate that a federal statute vests him

with such a right. See Alexander v. Sandoval, 532 U.S. 275,

291 (2001) (“Language in a regulation may invoke a private

right of action that Congress through statutory text created,

but it may not create a right that Congress has not.”).15 This

he does not do. 

15Even if there were a cause of action available under these regulations,

the Department acted properly. Where formal protest is warranted, the

Foreign Affairs Manual notes that “the level at which the protest is made

and the method are normally left to the post’s discretion.” 7 Foreign Aff.

Manual § 426.3. In this case, the Embassy exercised its discretion and protested Rouse’s treatment to the trial court and several Philippine officials.

ROUSE v. UNITED STATES DEP’T OF STATE 15733
Accordingly, the district court did not err in holding that

the Privacy Act does not afford a remedy for the harms Rouse

alleges.

V

Finally, Rouse contends that as he was litigating pro se in

the district court, it was error to dismiss his claims without

providing him the opportunity to amend his complaint. Rouse

is correct that “ ‘[d]ismissal of a pro se complaint without

leave to amend is proper only if it is absolutely clear that the

deficiencies of the complaint could not be cured by amendment.’ ” Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir.

2007) (quoting Schucker v. Rockwood, 846 F.2d 1202,

1203-04 (9th Cir. 1988)). 

[17] For the reasons discussed above, any attempt to amend

would be futile in this case. No amendment would be able to

cure either the statute of limitations violation,16 the lack of

causation, or the fact that Department regulations do not provide Rouse with a cause of action. Accordingly, the district

court did not err in declining to provide Rouse the opportunity

to amend his complaint.

VI

Based on the foregoing, the decision of the district court is

AFFIRMED. 

16For example, no amendment can explain how Rouse could have diligently preserved his rights in light of the fact that he filed an action with

the UNHRC, but failed timely to file his Privacy Act complaint in federal

court. 

15734 ROUSE v. UNITED STATES DEP’T OF STATE